Legal IssuesAdvance Care Planning
Advance Directives Nova Scotia
Jeanne Desveaux
May 9, 2014
Advance Health Care Directives
Two types:– Instructive Directive – Proxy Directive
Provides information to health care professionals if a patient is:– Unable to express their wishes– Unable to make decisions
The Instructive Directive
Referred to as “living will” Documents health care
preferences– Wishes regarding life-sustaining
treatments
Outlines how health care decisions should be made on patient’s behalf
Helpful to both the proxy and health professionals
The Instructive Directive
Criteria:– Patient and proxy must be
of the age of majority– Patient must be capable of
giving consent to medical treatment
To be valid, the authorization must be:– In writing– Signed by the person giving
it – Witnessed by a person who
is not the proxy or the spouse of the proxy
The Proxy Directive
Known as durable power of attorney for health care
Proxy is the “substitute decision maker”– A person entrusted with
responsibility to speak for another individual when they are unable to speak for themselves
Can incorporate the instructive directive
Reminders
Advance Care Directive must be available when crisis occurs– Not locked away in safety
deposit box
Directive must be reflective of the individual’s current health situation
Must reflect future unknowns (e.g. heart attack)
Documents must be reviewed and updated
Goals of Advance Directives
Role for both the physician and the lawyer
Goal is to develop a document that is: – Individualized to the
particular patient’s preferences
– Reflective of their goals and values
Personal Directives Act
Sample Clause
If, I am in the advanced (end) stages of an illness and in the dying process, I wish to have no life prolonging treatment, such as cardiopulmonary resuscitation (CPR), ventilation, blood transfusion surgery or tube feeding. I will accept treatment with antibiotics however, if it is administered with the intention of alleviating pain. I do wish to have pain medication and other measures, excluding intravenous or subcutaneous hydration, to keep me comfortable, even if they hasten my death.
Some unique features
Instructions about statutory decision-makers: If for some unforeseen reason my delegate
and alternative are unavailable, I am herein instructing that the following relatives are not to be consulted regarding any and all healthcare and personal decisions: Not Applicable
Consultation
Consultation when delegate making decisions
My delegate may consult with my family physician and other family members if my delegate determines that such consultation is advisable or necessary.
Purpose of the Act
Help individuals prepare for the onset of incapacity to make personal care decisions (nutrition, hydration, shelter, clothing, hygiene, comfort, recreation, support services, healthcare, placement)
Help individuals who have not prepared for incapacity regarding personal care decisions by providing a mechanism for the appointment of a statutory decision maker who can make decisions related to long term care placement, health care decisions and home care support services.
What does the Act allow for?
Appoint someone (delegate) to make personal care decisions for the maker
Set out instructions or general principles about what or how personal care decisions should be made
Hierarchy of statutory substitute decision makers for (1) health care (2) placement in continuing care home and (3) home care services
Jurisdictional Context
Nova Scotia’s approach is aligned with other Canadian provincial jurisdictions
Nova Scotia’s model is informed by a number of provincial programs that have been in existence for a number of years such as Ontario and the Yukon
Personal Directive – As a Document
Any individual capable to make the decision in the personal directive- including mature minors can make a personal directive
It must be signed, dated and witnessed A personal directive is considered a legal document if it
meets the above noted criteria A personal directive takes effect when the person who
created the personal directive, becomes incapacitated A personal directive will not assure the maker access to
services that are above and beyond the established program parameters– E.g. will not allow placement “fast tracking” based on facility preference
Planning for Your Future
A Personal Directive is just one of many planning mechanisms a person may use to ensure their wishes and values related to end of life decisions are captured and communicated
Other mechanisms may include:– Directives made in other jurisdictions are valid
(section 24)– Authorizations made under the Medical Consent Act
prior to Nov 1, 2009– Enduring Power of Attorney/Power of Attorney– Wills
Capacity For all Planning Mechanisms, Capacity is assumed unless otherwise proven
and is a requirement to support the validity of the planning document
Section 2(a): “capacity”, with respect to the Personal Directives Act, means the ability to understand the information that is relevant to the making of a personal care decision and the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision
Definition fits with national and international movement; (eg. UK Mental Capacity Act)
For Health Purposes When there is a question of or disagreement related to an individuals
capacity, physician’s opinion must be sought – section 10, 11 and 13 PDA –form in regulations
Health Care professionals will continue to assess client’s ability to give informed consent to service – as part of professional guidelines and scope of practice
Named Delegates Can make personal care decisions
– e.g.; Nutrition hydration shelter clothing hygiene, comfort, Recreation support services healthcare placement
Must abide by instructions outlined in personal directive, or if values or wishes are unknown, decisions should be made in the “best interests” of the person represented
Who are they? – Individual who created the personal directive can identify anyone they wish– e.g.
family member neighbour friend
Appointed Statutory Decision Makers
Can make decisions in relation to 3 areas:– health care– placement in continuing care home– home care services
Must make decisions based on knowledge of or believed wishes of the person based on values and/or oral instructions; if they do not know the wishes, they base decision on the ‘best interests’ of the person
Who are they? – Nearest relative (hierarchy)– Public Trustee
Protections and Limitations
Key protections: Termination/revocation Offences Court powers (similar to issues of guardianship now) Liability protection Good Faith Clause
Limitations A personal directive does not permit an illegal act An appointed substitute decision maker or delegate must comply with
the requirements set out in the Personal Directives Act with respect to their role and responsibilities– Section 15 (4) of the Act
Benefits
Fill long-standing gaps in legislation to address informed consent issues for placement and ‘home care services’ and health care outside of hospital
Allow for Nova Scotians to be legally clear about their wishes related to their care and personal decisions once they no longer have the capacity to do so;
Provide clarity to health care workers in working with delegates/ substitute decision makers (families)
Challenges
Developing and sharing a Personal Directive to ensure that their wishes and values related to their decisions are captured and communicated
Ensuring that health care professionals understand both the development process associated with creating a document (a Plan) as well as the law
Cognitive Impairment
Talking specifically about dementia The presence of dementia does not mean
an inability to complete a Personal Directive– It means there is more burden on the lawyer
receiving instructions (stats all over the map)– informed consent– Communication! Communication!
Capacity to make a Personal Directive
Decisional capacity includes at least four components:– understanding information relevant to the
decision– appreciating the information (applying the
information to one’s own situation)– using the information in reasoning– and expressing a consistent choice
Can capacity be improved?
Usually not, but understanding can
Communication can!
Supporting the efforts of “Speak Up”
Reminders
1. Everyone is assumed to be competent– Unless they have been declared incompetent by
a court – then their attorney/ delegate or guardian should be the decision-maker
2. Ask Questions-re-ask questions – (make a note of the questions and answers
when documenting the consent process)
Need More Information?
Information related the Personal Directives Act and developing a Personal Directive are
available online at:http://www.gov.ns.ca/jus/pda
Questions?